National Commissioner of Police v Southern African Human Rights Litigation Centre and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J
• Judgment Date: 30 October 2014
• Court: Constitutional Court
• Docket Number: CCT 02/14 [2014] ZACC 30
• Date: 30 October 2014
• Hearing Date: 19 May 2014
• Counsel: J Gauntlett SC (with F Pelser and M Maenetjie) for the applicant. W Trengove SC (with G Marcus SC and M du Plessis) for the first and second respondents. A Katz SC (with M Bishop and P Adonis) for the first to fourth amici curiae. S Cowen (with D Simonsz) for the fifth amicus curiae. N Fourie (with T Mafukidze and D Block) for the sixth amicus curiae. J Brickhill for the seventh amicus curiae.
• Citation: 2015 (1) SA 315 (CC)

Majiedt AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurring): D

Introduction

E [1] During the course of South Africa's transition to a democratic state, former President Nelson Mandela outlined what was to become South Africa's future foreign policy. He stated:

'South Africa's future foreign relations will be based on our belief that F human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations. . . . The time has come for South Africa to take up its rightful and responsible place in the community of nations. Though the delays in this process, forced upon us by apartheid, make it all the more difficult for us, we believe that we have the resources and the commitment that will allow us to begin to G make our own positive contribution to peace, prosperity and goodwill in the world in the very near future.' [1] [Emphasis added.]

[2] This outline of South Africa's future foreign policy is echoed in the preamble to the Constitution where it is stated:

H 'We, the people of South Africa, . . . adopt this Constitution as the supreme law of the Republic so as to —

. . .

Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.'

I [3] The extent of our country's responsibilities as a member of the family of nations to investigate crimes against humanity lies at the heart of this case.

Majiedt AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurring)

[4] This application for leave to appeal concerns the extent to which the A South African Police Service (SAPS) has a duty to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals. It calls upon us to establish South Africa's domestic and international powers and obligations to prevent impunity [2] and to ensure that perpetrators of international crimes committed by foreign nationals B beyond our borders are held accountable. We must determine what the law requires of us as South Africans and of our country as part of the community of nations in respect of these types of crimes.

[5] Leave to appeal is sought against a judgment of the Supreme Court C of Appeal [3] dismissing an appeal against a decision of the North Gauteng High Court, Pretoria (high court). The high court had issued a declaratory order that the applicant's decision not to investigate the alleged torture in Zimbabwe of Zimbabwean nationals by the Zimbabwean police during March 2007 was unlawful and constitutionally invalid. The Supreme Court of Appeal declared that — D

'on the facts of this case . . . the SAPS are empowered to investigate the alleged offences [of torture] irrespective of whether or not the alleged perpetrators are present in South Africa; [and] the SAPS are required to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 into the alleged offences'.

Parties E

[6] The applicant is the National Commissioner of the SAPS (National Commissioner) who is appointed in terms of s 207(2) of the Constitution to 'control' and 'manage' the police service. The National F Commissioner is directly affected by the order of the Supreme Court of Appeal and is the only applicant before us.

[7] The first respondent is the Southern African Human Rights Litigation Centre (SALC), a non-governmental organisation based in Johannesburg which is an initiative of the International Bar Association and the G Open Society Initiative for Southern Africa. It provides support to human-rights and public-interest litigation within southern Africa. The second respondent is the Zimbabwe Exiles' Forum (ZEF), an organisation concerned with achieving justice and dignity for victims of human

Majiedt AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurring)

A rights violations occurring in Zimbabwe. Its particular focus extends to exiled victims of human rights abuses in Zimbabwe.

[8] Seven amici curiae were admitted and presented both written and oral argument. The first four amici are international-law experts with an B interest in international criminal law. The fifth amicus is the Tides Center, a non-profit public benefit corporation based in California, which was admitted as an amicus in this matter before the Supreme Court of Appeal. The sixth amicus is the Peace and Justice Initiative (PJI), a non-governmental organisation registered under Dutch law and C based at The Hague. PJI is a network of international-law professionals that comprises many current and former members of various international criminal tribunals. The seventh amicus is the Centre for Applied Legal Studies (CALS), a human-rights organisation and law clinic established in 1978 and based at the University of the Witwatersrand Law School. We are indebted to counsel for the parties and the amici for their D helpful arguments on a complex legal question.

Factual background

[9] In March 2007, a year before national elections in Zimbabwe, the Zimbabwean police, allegedly acting on instructions from the ruling E political party, the Zimbabwe African National Union — Patriotic Front (ZANU – PF), raided Harvest House in Harare. This is the headquarters of the main opposition party, the Movement for Democratic Change (MDC). During the raid more than 100 people were taken into custody, including workers in nearby shops and offices. These individuals were F detained for several days and allegedly tortured by the Zimbabwean police. The detention and torture were allegedly part of a widespread and systematic attack on MDC officials and supporters in the run-up to the national elections.

G [10] SALC compiled detailed evidence of the alleged torture. It obtained 23 sworn written statements. Seventeen of the deponents attested to being tortured whilst in police custody. These deponents stated that they were subjected to severe pain and suffering as a result of beatings with iron bars and baseball bats, waterboarding, forced removal of their H clothing, and electric shocks applied to their genitals and thighs. They were also subjected to mock executions during which they were hooded and a gun was pressed against their heads. The deponents further stated that they were tortured in order to obtain confessions regarding their purported involvement with the MDC. The remaining six affidavits, deposed to by Zimbabwean lawyers, medical practitioners and family I members of the victims, corroborated the torture allegations.

[11] Out of concern about the alleged collapse of the rule of law in Zimbabwe, the safety of the victims and the possibility that the Zimbabwean courts would not hold the perpetrators accountable, SALC collated the evidence into a dossier (torture docket). This was J hand-delivered to the Priority Crimes Litigation Unit (PCLU) of the National

Majiedt AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurring)

Prosecuting Authority (NPA) [4] on 16 March 2008, slightly less than a year A after the Harvest House incident. The torture docket was submitted to the PCLU together with a comprehensive memorandum (SALC memorandum) in which the substance and procedure of prosecuting crimes against humanity were outlined. [5] In order to protect the safety of the torture victims, it was agreed between representatives of SALC and the B PCLU that the names of the victims and of the alleged perpetrators would be kept strictly confidential. As a result these names do not appear in the papers. Furthermore, the torture docket itself is not part of the papers. The SALC memorandum and the accompanying evidence in the torture docket are of crucial importance in this case. They consist of more than C 50 pages of detailed legal and factual submissions providing guidelines on the prosecution of crimes against humanity such as torture. The SALC memorandum concludes by requesting the NPA, through the PCLU, to consider the memorandum and the evidence so that it may expeditiously decide whether to initiate an investigation, under the Implementation of the Rome Statute of the International Criminal Court Act [6] (ICC Act), D into the alleged acts of torture. SALC also proffered its assistance for 'the further gathering of evidence and/or provision of advice regarding international criminal law in relation to the acts alleged against the named perpetrators'. [7]

[12] The gravamen of SALC's submissions is that South African E law-enforcement agencies are legally obliged under the ICC Act to investigate international crimes (including torture) and to hold the perpetrators of these crimes accountable in South African courts. Not all instances of torture constitute crimes against humanity, but it was undisputed that if the allegations in this case are proved, the conduct of the Zimbabwean F police officers could amount to crimes against humanity and thus an international crime. The SALC memorandum sought the investigation of the alleged crime of torture not only against the Zimbabwean police, but also against their superiors in the police and in government on the basis of the doctrine of 'command responsibility'. [8] It was not at issue during G

Majiedt AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurring)

A the proceedings in the high court, the Supreme Court of Appeal or this court that the torture complaints were never brought to the attention of the Zimbabwean law-enforcement...